Who is a Refugee?

The legal status of refugees in Australia is a contentious and frequently misunderstood matter. Unlike many developing countries, where the United Nations High Commissioner for Refugees will make a determination of a person's refugee status, Australia has a formal administrative process for assessing refugee claims. As an administrative process, the Department of Immigration and Citizenship (or the reviewing Refugee Review Tribunal) has a significant role in determining who will be accepted for resettlement in Australia as a refugee.

The purpose of this article is to explain who is a "refugee" under Australian law. Owing to documentary requirements and individual nature of refugee applications, an examination of the process for obtaining refugee protection is beyond the scope of this discussion.

Formal Definition

Under the Migration Act 1958 (Cth), a person's status as a refugee is assessed against the definition in Art 1A of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (collectively, the "Refugee Convention"). This is a person who: [O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Accordingly, this definition creates two main criteria:

A well-founded fear of persecution; and

That the person is outside their country of nationality and is unable or unwilling (on the basis of fear) to return.

However, the provisions of the Refugee Convention are expressed not to apply to a person who has committed, among other matters, war crimes, crimes against humanity or serious non-political crimes.

Definitional Problems

As part of the first requirement, an applicant must show a well-founded fear of persecution. A literal interpretation of this definition would not include a person who has left their country because of civil-war, famine, environmental devastation or a complete absence of the rule of law. Refugee advocates have strongly argued that as this definition does not provide "complimentary protection" for people who fall outside the formal ambit of the Refugee Convention definition, the result being that it falls largely to the Minister for Immigration and Citizenship to make a discretionary decision for humanitarian protection.

Implications for Refugee Applicants

Owing to the somewhat general nature of the Refugee Convention's definition, quite a number of people will fall outside the formal definition of a refugee. However, Australia also has a Special Humanitarian Program for offshore applicants, which is not subject to the same restrictive definition of "refugee".

Speaking with a qualified lawyer or migration agent who has familiarity with Australian immigration law is very useful and hopefully the first step on the road to coming to a new life in Australia.